Timing Obligations In FOB Sale Contracts

Timing Obligations Of FOB Buyers

1. Timely Provision Of A Conforming Letter Of Credit

In FOB sale contracts the buyer`s obligation to provide a letter of credit conforming with the contract terms is a condition of the contract. The buyer`s failure to comply with such obligation shall entitle the seller to terminate the contract and claim damages.
The buyer`s obligation to provide a conforming L/C is stated either subject to a deadline or in general terms.
If there is an express term in the sale contract that a conforming L/C has to be provided to sellers latest by a certain date, the FOB buyers must provide a conforming L/C by that date. In the absence of a deadline in the sale contract for the provision of a conforming L/C, the FOB buyers must provide a conforming L/C at the latest by the earliest date of the contract shipment period<sup>1</sup>.
In the event of delays in the opening of L/C or in the case of provision of a non-conforming L/C, the FOB sellers may postpone delivery of the cargo, without prejudice to their right to terminate the sale contract.
In the English law case Kronos Worldwide Ltd. v. Sempra Oil Trading SARL<sup>2</sup>, the question in dispute was when the laytime starts in the case of delays in delivery due to the late opening of L/C.
The FOB buyers had the obligation to secure the payment of a gasoil cargo through a letter of credit "to be opened promptly through a first class bank".
The contract delivery period was 25 – 30 June 2001.
Before the vessel nomination the FOB seller sought to postpone the shipment of gasoil cargo from  25 – 30 June to 1 – 5 July 2001 due to a change in the refinery schedule. The buyers did not agree.
The nominated vessel arrived at loading port on 28 June 2001 and tendered NOR from the customary anchorage. The L/C was not issued until 5 July when the FOB seller asked for it. The loading commenced on 9th July and was completed on 11th July.   
The FOB buyer claimed demurrage for the time spent by the vessel at anchorage between 30 June, when laytime expired, and 11th July when loading was completed. The English Court of Appeal rejected the claim holding that the provision of a conforming L/C was an implied condition precedent to any obligation on the part of the seller to perform any aspect of the loading operation which was the seller`s responsibility, including the provision of a free berth.
The late provision of L/C by FOB buyer prevented the commencement of laytime notwithstanding the vessel`s NOR tendered from the customary anchorage. The laytime did not commence until a reasonable time after the provision of letter of credit and on that basis not before 9 July 2001, after which the cargo was loaded on the vessel within the permitted laytime, so that no demurrage was due.
The question of when the laytime starts in the case of late opening of L/C or delays in the provision of a conforming L/C should be addressed in the sale contract. One option is to stipulate that in such case the laytime starts upon berthing of vessel.
INCOGRAIN Contract No. 13 Clause XIII (C) stipulates that:

"in case of late opening of the letter of credit, Sellers may postpone the fulfillment of the open contract until receipt of the bank confirmation that the letter of credit has been opened;
[…] Sellers may after having given a formal notice of minimum two working days cancel the tonnage still to be fulfilled on the whole contract without prejudice to their rights to claim damages as provided for in clause XV "Default".
Any expenses arising from delays in payment and/or opening of the letter of credit shall be for the account of defaulting Buyers."

2. Timely Nomination Of A Suitable Vessel

Where an FOB sale contract requires the buyer to nominate a vessel by a particular date (including by stipulating a pre-advice period and a shipment period), then it is (subject to any contrary intention expressed in the contract) a condition of the contract that the buyer must provide a valid nomination by the relevant deadline, because that is a stipulation as to time in a mercantile contract in relation to which the contracting parties should be taken to have intended that the time to be of the essence³.
The buyer has the obligation to nominate a vessel that complies with the contract requirements not later than the day preceding the commencement of the minimum pre-advice period before the contractual time limit for the vessel presentation for loading.
The contractual time limit for the vessel nomination is in function of the pre-advice period for vessel nomination and the contractual time limit for the vessel presentation for loading.
In the case of sale contracts that give buyers the right to request extension of the contract delivery period, the buyers requesting extension of the delivery period have the obligation to nominate a suitable vessel not later than the day preceding the commencement of the minimum pre-advice period before the last day of the extension period⁴.
In the case of sale contracts that do not allow the buyers to request extension of the contract delivery period, the timing obligation of the buyer to nominate the vessel will be in function of the contractual time limit for the vessel presentation for loading.
If the contract delivery period is stated as a vessel presentation period, the buyers have the obligation to nominate a suitable vessel not later than the day preceding the commencement of the minimum pre-advice period before the last day of the delivery period.
INCOGRAIN Contract No. 13 gives the FOB seller an express right to terminate the sale contract in the event that the buyer fails to provide the required ETA notice and the vessel nomination notice by the contractual deadlines. Clause V of INCOGRAIN Contract No. 13 stipulates that:

"In a provisional notice of not less than eight consecutive days, Buyers shall state the date from which they shall be able to present a vessel for loading, together with the estimated tonnage required.
Under penalty of default, this provisional notice must be compulsorily followed by a definite notice from Buyers of not less than four consecutive days, advising the name of the vessel (and if possible vessel`s agents), the tonnage required and the expected date of berthing; such date to fall within the seven consecutive days from the date stated (included) in the provisional notice and shall under no circumstances exceed the last day of the shipment period.
At all events, Buyers are in default if the provisional notice does not reach Sellers on the ninth consecutive day preceding the end of the shipment period. The same shall apply if the definite notice does not reach Sellers on the fifth consecutive day preceding the end of the shipment period."

If the contract delivery period is stated as a shipment period, the buyers have the obligation to nominate a suitable vessel with the minimum pre-advice period stipulated in the sale contract and with an ETA and/or expected readiness date that will give to the seller sufficient time to complete loading of the nominated contract quantity at the contractual loading rate before the end of the contract delivery period⁵. The sellers should stipulate in such sale contracts a time limit for the buyers to present the nominated vessel ready in all respects for loading taking into consideration the time necessary to complete loading of the cargo quantity at the contractual loading rate before the end of the contract shipment period⁶.
If the buyers fail to nominate a suitable vessel in the required number of days stipulated in the sale contract as the pre-advice period before the contractual time limit, this will be considered a breach of condition of the contract which would entitle the sellers to reject the vessel nomination and terminate the contract⁷. However, the sellers can terminate the sale contract for breach of condition only if the vessel nomination notice is transmitted by the buyers too late for the sellers to perform their delivery obligation. If the buyer makes initially an invalid nomination (e.g. nominates a vessel that does not comply with the contract requirements or a vessel with an ETA or expected readiness date beyond the contractual time limit) but there is sufficient time left until the contractual time limit for the vessel presentation for loading to make a new vessel nomination with the pre-advice period stipulated in the sale contract, the buyer`s initial failure to provide a valid nomination will not be considered a breach of condition of the contract provided that the buyer will make a new vessel nomination in time and with the pre-advice period required in the sale contract<sup>8</sup>.
The seller`s remedy in the case of an invalid nomination would be to reject the nomination⁹ but the seller will not be entitled to terminate the contract after the receipt of an invalid nomination if the buyer has further time to make a new valid nomination with sufficient pre-advice before the contractual time limit¹⁰.
In the event that the buyer provides a vessel nomination notice with an ETA date earlier than the expiry of the pre-advice period stipulated in the sale contract, this would not make the vessel nomination invalid if there is sufficient time left until the contractual time limit for the vessel presentation for loading. The vessel nomination remains valid, but the seller`s obligation to load will be on the next date after the expiry of the pre-advice period, and not sooner, irrespective of vessel`s ETA date pre-advised by the buyer¹¹. Therefore, in the event of the vessel`s early arrival, any time lost by the vessel at loading port until the loading obligation date shall be for the buyer`s account.

3. Timely Submission Of Documentary Instructions

In FOB sale contracts the buyers must provide the documentary instructions with sufficient time before the vessel`s ETA to enable the seller to arrange the Customs clearance of the goods in due time prior to the expected date of the vessel readiness for loading. However, the time stipulation as to the submission of documentary instructions is not considered a condition of the contract because it is not an obligation that has to be performed by the buyers as a condition precedent to the seller`s ability to perform an essential term. The delay in the submission of documentary instructions will not prevent the seller to deliver the goods and get the payment.
If the buyer fails to send the documentary instructions within the contractual time limit, the seller may either reserve the right not to deliver the documents in accordance with the buyer`s instructions or alternatively, choose to delay loading to be able to comply with the buyer`s instructions. In the latter option, the seller shall be entitled to delay loading by the number of days the documentary instructions are late with no responsibility for the time spent on demurrage by the vessel and claim any extra costs incurred thereby.

4. Timely Notification Of The Vessel Substitution

In FOB sale contracts the vessel substitution is usually allowed subject to the substitute vessel`s compliance with the contract requirements in respect of the vessel type, size, de-ballasting capacity, with the originally pre-advised ETA and with the requirements of the SOLAS Convention Chapter XI – 2 and the ISPS Code<sup>12</sup>.
Some contracts require that the ETA of the substitute vessel to be not later than the ETA of the originally nominated vessel. Examples of contract forms with such provisions are NAEGA FOB Export Contract<sup>13</sup> and INCOGRAIN Contract No. 13<sup>14</sup>.
Other FOB contract forms require that the ETA of the substitute vessel to be not later than a specific number of days after the ETA of the originally nominated vessel.
The vessel substitution should be communicated in time to seller in order to arrange the Customs clearance of the goods and to inform the port operator to schedule the substitute vessel for loading.
If the sale contract does not provide a time limit for the submission of the vessel substitution notice and has no other conditions concerning the vessel substitution, the English Commercial Court held that the pre-advice requirements for the vessel nomination would equally apply to the nomination of any substitute vessel<sup>15</sup>. This means that if the FOB buyers will have to nominate a substitute vessel they must comply with the same pre-advice requirements as for the nomination of the original vessel. If at the time of the vessel substitution notice there is sufficient time left until the end of the vessel presentation period, the sellers will consider the vessel substitution notice as a new nomination and will start counting a new pre-advice period. If at the time of the vessel substitution notice the time left until the end of the vessel presentation period is shorter than the contractual pre-advice period, the buyer`s non-compliance with the pre-advice requirements for the vessel substitution will be considered a breach of condition of the contract which would entitle the sellers to reject the vessel substitution notice and terminate the sale contract¹⁶.
If the sale contract stipulates a time limit for the submission of the vessel substitution notice, the question whether the timely submission of the vessel substitution notice can be considered a condition of the contract depends on the circumstances of the case.
If the circumstances of the case indicate that the precise compliance with such time stipulation would be necessary for the performance by the seller of his timing obligation, then the timely submission by the buyer of the vessel substitution notice could be considered a condition of the contract. For instance, in a case where the contract delivery period is stated as a vessel presentation period and the ETA of the originally nominated vessel is on the last day of such period, the buyer`s obligation to give the vessel substitution notice by the relevant deadline can be considered a condition of the contract.
If, however, the ETA of the originally nominated vessel falls on a date that is sufficiently in advance of the last day of the vessel presentation period for the seller to schedule the substitute vessel for loading, a late substitution notice would not entitle the seller to reject the vessel substitution notice and terminate the contract, but only to delay loading by the number of days the vessel substitution notice was late and claim any extra costs incurred thereby<sup>17</sup>. In such case the substitute vessel`s NOR shall become effective only after the expiry of the notification period.

5. Timely Presentation And Readiness Of Vessel

In FOB sale contracts the contractual time limit for the presentation of vessel for loading depends on whether the contract delivery period is stated as a period for the presentation of vessel for loading or as a shipment period.
If the contract delivery period is stated as a vessel presentation period, the buyer`s obligation shall be to present the vessel ready for loading, after giving the required pre-advice of ETA, within the contract delivery period.
In some contract forms, such as GAFTA Contract No. 49 and GAFTA Contract No. 64, there is no specific requirement in respect of the degree of readiness of the vessel, no requirement for the tender of a valid NOR and no deadline for the presentation of vessel for loading, which means that the buyer must present the vessel for loading, not necessarily ready in all respects<sup>18</sup>, not later than 23:59 hours on the last day of the contract delivery period.
In the contract forms that stipulate a deadline for the presentation of vessel for loading the buyers must present the vessel before the deadline. For instance, FOSFA Contract No. 4A requires the buyers to present the vessel at loading port in "readiness to load" not later than 14:00 hours on the business day preceding the last working day of the contract delivery period. Another example is GAFTA Contract No. 38 that in the case of shipments to be made from the ports on the Parana River requires the buyers to present the vessel ready in all respects for loading with minimum 24 hours before the expiry of the contract delivery period. ANEC FOB Contract No. 41 requires the buyers to present the vessel ready in all respects for loading and tender valid NOR by 17:00 hours on the last day of the contract delivery period provided that the buyers have given the minimum 15 days` pre-advice of the vessel`s ETA. GTA FOB Contract No. 1 requires the buyers to present the vessel ready in all respects for loading and tender valid NOR by 17:00 hours on the last working day of the contract delivery period.
The FOB sale contracts that state the contract delivery period as a vessel presentation period commonly provide the buyer`s obligation to narrow the contract delivery period to a shorter laycan period. In such contracts after the buyer nominates the laycan period his obligation will be to present the vessel for loading by the end of the last day of the laycan period or, if the contract provides a deadline on the last day of the laycan period for the presentation of vessel for loading, by the deadline on the last day of the laycan period stipulated in the sale contract. For example, the Edition 2008 of GTA FOB Contract No. 1 provides that following the laycan fixation, the vessel`s NOR has to be tendered "at latest by 12:00 hours on the last day of the laycan". If the buyer`s vessel fails to tender valid NOR by the end of the last day of the laycan period or by the deadline on the last day of the laycan period stipulated in the sale contract, the seller is entitled to terminate the contract¹⁹.
If the contract delivery period is stated as a shipment period, the buyers must present the vessel ready in all respects for loading with sufficient time before the end of the contract delivery period to enable the sellers to complete loading of the goods by the end of the contract delivery period.
If it is a condition of the contract for the goods to be shipped on board the vessel by the end of the contract delivery period, it is also a condition of the contract the requirement that the buyers must present the vessel ready in all respects for loading with sufficient time before the end of the contract delivery period to allow the sellers to complete loading of the goods by the end of  of the contract delivery period²⁰.
The sellers should stipulate in such contracts a time limit for the presentation of vessel for loading and not leave this matter to implication. The time limit for the presentation of vessel for loading should be set in the sale contract taking into consideration the time necessary to complete loading of the contractual cargo quantity at the contractual loading rate before the end of the contract delivery period.

Implications Of The Vessel Missing The ETA Or Expected Readiness Date

In FOB sale contracts for grain and oilseed cargoes, the expected date of vessel readiness for loading is the date on which the buyer honestly and on reasonable grounds expects at the time of the vessel nomination that the vessel will be ready in all respects for loading²¹.
The buyer`s failure to present the vessel ready in all respects for loading on the expected readiness date pre-advised in the vessel nomination notice is not a basis for the termination of the sale contract by the seller provided that the vessel will eventually show up ready in all respects for loading before the contractual time limit, that is the deadline on the last day of the vessel presentation period for the buyer`s vessel to tender valid NOR.
The seller would only be entitled to claim reimbursement of the additional costs charged by the port operators due to the vessel`s late presentation or late readiness for loading.
The port operators schedule the grain shipments in function of the expected readiness dates of the nominated vessels. In the event of the vessel`s late arrival or late readiness they charge additional fees. For instance, the Australian port operator CBH Group charges shippers an "Incorrect ETA Fee" for vessels that tender valid NOR five or more clear days after the vessel`s ETA date and a "Failed Survey Fee" for vessels that fail the holds` inspection.
Given that the port operators will invoice these additional charges for the shippers` account, the shippers should provide in their FOB sale contracts the buyers` obligation to reimburse the proven expenses incurred by the sellers due to the vessel`s late arrival or non-compliance with the holds` cleanliness requirements. This obligation is stipulated only in INCOGRAIN Contract No. 13 which provides that if the buyer`s vessel fails to present ready in all respects for loading on the date pre-advised in the vessel`s nomination notice as the expected date of berthing, the buyer shall be liable for any proven expenses incurred by the seller for this reason, even if the seller will manage to complete loading during the contract delivery period. If in spite of the seller`s compliance with the contractual loading rate the seller will not be able to complete loading before the end of the contract delivery period due to the vessel`s late arrival or delayed readiness for loading, the contract price for the quantity of goods loaded after the contract delivery period shall include an additional charge to be calculated based on the number of additional days required to complete loading.

Timing Obligations Of FOB Sellers

1. Timely Nomination Of The Loading Port And Berth

In FOB sale contracts the contractual time limit for the nomination of the loading port and berth by the sellers is set in function of the vessel nomination time and contract delivery period.
The Clause 8 of NAEGA FOB Export Contract provides that:

"Seller shall, if applicable, declare port and berth of loading within a reasonable time (but not later than_________________ days) after receipt by seller of the preadvice, except that seller shall not be obligated to make such declaration earlier than (a) the 8th day prior to commencement of the delivery period for port declaration and (b) the 5th day prior to commencement of the delivery period for berth declaration."

For the nomination to be accepted by the buyers, the nominated port and berth must have sufficient water depth to allow the nominated vessel (or the vessel to be nominated based on the contract requirements as to the type of vessel) to safely reach, stay as far as necessary for the loading of cargo and depart from laden with the contractual cargo quantity at the relevant time²².
In FOB sale contracts that require the sellers to nominate the loading port within a contractual time limit, the seller`s obligation to nominate a suitable port within the contractual time limit is a condition of the contract. The seller`s failure to comply with such obligation shall entitle the buyer to terminate the contract and claim damages. An example of contract clause covering this matter is the Clause IV of INCOGRAIN Contract No. 13 that gives the FOB buyer an express right to terminate the sale contract for breach of the port nomination provisions. The clause provides that:

"In the event of a sale calling for a compulsory nomination of the port of shipment, Sellers, under penalty of default, shall notify the name of one single port not later than the first day of the shipment period. If this day falls on a Saturday, a Sunday, a public holiday or another non-working day, the expiry date of the fixed period shall be brought forward to the preceding working day. However, Buyers may require this nomination to be made as from the fifteenth day of the month preceding a monthly shipment period, or fifteen consecutive days prior to the beginning of a shipment period other than a monthly period. In this case, Sellers must thenceforth under penalty of default definitely nominate the loading port within two working days following the date of the request."

2. Timely Provision Of A Free Berth

Upon the vessel`s arrival at the loading port, the FOB sellers have the obligation to provide a free berth for loading.
In port sale contracts, if the seller is unable to provide a free berth upon the vessel`s arrival at the loading port, the seller shall be liable to pay demurrage charges in the event that the time spent by the buyer`s vessel at loading port exceeds the contractual laytime due to the time lost waiting for berth.
In berth sale contracts such as GAFTA Contract No. 38 the buyer`s vessel shall be considered an "arrived ship" for the purpose of commencement of laytime only after the vessel has entered at the berth nominated by the sellers. Since the commencement of laytime is conditional upon the vessel berthing, the time lost prior to berthing in case of congestion at loading berth shall fall outside the scope of laytime. But the buyers shall be entitled to claim damages for detention of vessel prior to berthing because the FOB sellers have an implied obligation not to prevent the buyers` vessel from becoming an "arrived ship"²³.

3. Delivery Obligation

The seller`s obligation to deliver the goods is in function of whether the contract delivery period is stated in the sale contract as a period in which the seller must deliver the goods or as a period in which the buyer must present a vessel for loading.
If the contract delivery period is stated as a shipment period, the delivery obligation is that loading must be completed within the contract delivery period. The time of delivery is an obligation which is of the essence of the sale contract. The seller`s obligation to load the goods by the end of the contract delivery period is considered a condition of the contract.
The seller`s failure to load the goods within the contract delivery period will entitle the buyer to claim damages for late delivery based on the difference between the market value of the goods on the last day of the contract delivery period (which is considered the contractual delivery date) and their value on the date when they were actually delivered (Bill of Lading date).
If the contract delivery period is stated as a vessel presentation period, the time of delivery is an obligation which is not of the essence of the sale contract. In the English law case ERG Raffinerie Mediterranee SPA v. Chevron USA Inc²⁴., the English Court of Appeal held that:
- If the buyer`s vessel can serve NOR until 23:59 hours on the last day of the contract delivery period, it cannot be a condition of the contract that loading has to be completed by that time, irrespective of the time when the vessel actually gives NOR at loading port.
- Even if the buyer`s vessel arrives at loading port and tenders valid NOR when there is sufficient time left for the completion of loading by the end of the last day of the contract delivery period, the seller is not contractually obliged to complete loading by that time. He is not even required to commence loading within a prescribed time. If the loading berth or the goods are not available at the time of the vessel`s arrival at the loading port, the vessel can be kept waiting and the buyer cannot withdraw the vessel until after the expiry of a "frustrating time", that is ill-defined by the English Courts. The seller shall not be in breach of contract for failing to provide a free berth and commence loading promptly after the vessel presentation for loading, unless the sale contract provides otherwise²⁵.
BP and Shell terms for FOB sales of crude oil, that state the vessel presentation period as "laydays", stipulate that the seller`s obligation is to commence and complete loading "as soon as reasonably practicable" after the receipt of valid NOR and expiry of 6 hours` Notice time, "even if this means that loading is effected or completed outside the Laydays"²⁶. In the event of late delivery of the goods due to the unavailability of berth or goods, the demurrage shall be the only remedy for the buyer.
The buyer cannot claim damages for late delivery or anything else than demurrage. BP and Shell terms for FOB sales of crude oil stipulate that in the event of any delay arising from the scheduling of the vessel`s turn to load, the provision of a berth for the vessel, berthing or loading of the vessel, "any rights of the Buyer against the Seller […] shall be limited in all circumstances whatsoever to a claim for the payment of demurrage"²⁷. Furthermore, Sub-Clause 7.5.1 of BP Terms for FOB Sales and Purchases of Crude Oil and Petroleum Products, 2015 Edition, stipulates that:

"The Seller shall not be liable (other than for demurrage as aforesaid) for any loss or damage, direct or indirect, which the Buyer may suffer as a result of the Crude Oil or Product not being loaded within the time allowed ..."

by Vlad Cioarec, International Trade Consultant

This article has been published in Commoditylaw`s Grain Trade Review Edition No. 6.

Endnotes:

1. See Ian Stach Ltd. v. Baker Bosley Ltd. [1958] 2 Q.B. 130; [1958] 1 Lloyd`s Rep. 127; Glencore Grain Rotterdam BV v. Lebanese Organisation For International Commerce, [1997] EWCA Civ 1958; [1997] 2 Lloyd`s Rep. 386; Kronos Worldwide Ltd. v. Sempra Oil Trading SARL, [2004] EWCA Civ. 3, [2004] 1 Lloyd`s Rep. 260.
2. [2004] EWCA Civ. 3, [2004] 1 Lloyd`s Rep. 260.
3. See Bunge Corporation (New York) v. Tradax Export S.A. (Panama), [1981] UKHL 11; A v. B, [2021] EWHC 793 (Comm).
4. See Bunge Corporation (New York) v. Tradax Export S.A. (Panama), [1981] UKHL 11.
5. See Bremer Handelsgesellschaft M.B.H v. J. H. Rayner & Co. Ltd., [1978] 2 Lloyd`s Rep 73; Mocatta J. stated that: "If the contract names a date for shipment of the goods, there is an obligation upon the buyers to tender a ship on which the sellers can place the goods by such a date as would enable the sellers to complete putting the goods on board by the end of the period named in the contract of sale. Furthermore, as common sense demands, the buyers must give adequate notice to the sellers of at least the expected readiness date at the named port of shipment of the vessel nominated by the buyers to lift the goods which he has agreed to purchase from the sellers." See also ERG Raffinerie Mediterranee SPA v. Chevron USA Inc (t/a Chevron Texaco Global Trading), [2007] 2 Lloyd`s Rep. 542, [2007] EWCA Civ 494; Ramburs Inc. v. Agrifert S.A., [2015] EWHC 3548 (Comm).  
6. For an example of such provisions see the Clause 7 of GAFTA Contract No. 79A and Clause 12 of GAFTA Port Terms No. 129.
7. See Bunge Corporation (New York) v. Tradax Export S.A. (Panama), [1981] UKHL 11; A v. B, [2021] EWHC 793 (Comm); ERG Raffinerie Mediterranee SPA v. Chevron USA Inc (t/a Chevron Texaco Global Trading), [2007] 2 Lloyd`s Rep. 542, [2007] EWCA Civ. 494.
8. "Subject to any contractual provisions to the contrary, a buyer who has nominated a vessel to load the cargo is entitled to withdraw the nomination and replace it with another, provided that the second nomination is in time to allow the vessel so nominated to fulfil the buyer`s contractual obligations and is otherwise in accordance with the contract." See Ramburs Inc. v. Agrifert S.A., [2015] EWHC 3548 (Comm). "A valid nomination may be preceded by an initial nomination that is or becomes invalid due to subsequent events." See A v. B, [2021] EWHC 793 (Comm).
9. See A v. B, [2021] EWHC 793 (Comm).
10. See Bremer Handelsgesellschaft M.B.H v. J. H. Rayner & Co. Ltd., [1978] 2 Lloyd`s Rep. 73.
11. See Thai Maparn Trading Co Ltd. v. Louis Dreyfus Commodities Asia Pte Ltd., [2011] EWHC 2494 (Comm).
12. The buyer may substitute the originally nominated vessel only with a vessel complying with the requirements of the SOLAS Convention Chapter XI – 2 and the ISPS Code. The substitute vessel must provide the security information  required by the SOLAS Convention Chapter XI – 2 Regulation 9 paragraph 2.1 (i.e. the security level at which the vessel operates at the time, whether the vessel has on board a valid International Ship Security Certificate) and other security-related information such as the location of the vessel and ETA in time before the vessel`s ETA at loading port for the loading port authority and the national authority for maritime security to determine whether the substitute vessel complies with the requirements of the SOLAS Convention Chapter XI – 2 and the ISPS Code. The time limits for the provision of security information are established by the Governments in function of the security level set for the loading port and the security level at which the coming vessel operates.
13. The Clause 8 of NAEGA FOB Export Contract stipulates that: "Buyer shall be allowed to make one substitution of a vessel, provided the substituting vessel is of the same type and approximately the same size and position. […] The nomination of the substituting vessel shall be subject to the preadvice requirements of this clause, regardless of any preadvice previously given, unless the estimated time of arrival of the substituting vessel is the same as the estimated time of arrival of the original vessel when nominated."
14. INCOGRAIN Contract No. 13 stipulates that the buyer may substitute the originally nominated vessel provided that the substitute vessel will be ready for loading on the ETA date of the originally nominated vessel and will be able to load the cargo quantity originally nominated.
15. See Ramburs Inc. v. Agrifert S.A., [2015] EWHC 3548 (Comm).
16. See Ramburs Inc. v. Agrifert S.A., [2015] EWHC 3548 (Comm).
17. See Ramburs Inc. v. Agrifert S.A., [2015] EWHC 3548 (Comm).
18. See Soufflet Negoce S.A. v. Bunge S.A., [2010] EWCA Civ. 1102; [2011] 1 Lloyd`s Rep. 531.
19. See ERG Raffinerie Mediterranee SPA v. Chevron USA Inc (t/a Chevron Texaco Global Trading), [2007] 2 Lloyd`s Rep. 542, [2007] EWCA Civ. 494.
20. See ERG Raffinerie Mediterranee SPA v. Chevron USA Inc (t/a Chevron Texaco Global Trading), [2007] 2 Lloyd`s Rep. 542, [2007] EWCA Civ 494; In Bremer Handelsgesellschaft M.B.H v. J. H. Rayner & Co. Ltd., [1978] 2 Lloyd`s Rep. 73, Mocatta J. stated that: "If the contract names a date for shipment of the goods, there is an obligation upon the buyers to tender a ship on which the sellers can place the goods by such a date as would enable the sellers to complete putting the goods on board by the end of the period named in the contract of sale."
21. See A v. B, [2021] EWHC 793 (Comm). In grain voyage charterparties the expected date of vessel readiness for loading is the date on which the shipowner honestly and on reasonable grounds expects at the time of the vessel nomination that the vessel will be ready in all respects for loading. See Maredelanto Compania Naviera SA v. Bergbau-Handel GmbH (The "Mihalis Angelos"), [1970] EWCA Civ 4, [1970] 2 Lloyd`s Rep 43; Evera S.A. Comercial v. North Shipping Company Ltd., [1956] 2 Lloyd`s Rep. 367.
22. See the contract provisions in the English law case Ramburs Inc. v. Agrifert S.A., [2015] EWHC 3548 (Comm): "1 safe berth 1 safe Panamax suitable port Ukraine to be declared [by Sellers] on vessel`s nomination".
23. See the English law case Sociedad Financiera de Bienes Raices v. Agrimpex (The "Aello"), [1960] 1 Lloyd`s Rep. 623.
24. [2007] 2 Lloyd`s Rep. 542, [2007] EWCA Civ. 494.
25. For instance, Clause VI (5) of INCOGRAIN Contract No. 13 stipulates that if the seller does not commence loading within three working days following the day when the vessel is in all respects ready to load at the loading berth, he shall be in default, save in case of force majeure.
26. See Sub-Clause 6.2.2 of BP Oil International Ltd. General Terms & Conditions For Sales And Purchases Of Crude Oil And Petroleum Products, 2015 Edition; See Sub-Clause 6.2.2 of Shell International Trading and Shipping Company Ltd. General Terms & Conditions for Sales and Purchases of Crude Oil.
27. See Sub-Clause 7.1 of BP Oil International Ltd. General Terms & Conditions For Sales And Purchases Of Crude Oil And Petroleum Products, 2015 Edition; See Sub-Clause 7.3 of Shell International Trading and Shipping Company Ltd. General Terms & Conditions for Sales and Purchases of Crude Oil.